Case o' The Week: 3553 and IAC - Ninth limits information permitted for variances

   “No limitation* shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. Section 3661, available here.

   (* No limitation, except for those carved out by the Courts of Appeal). United States v. Dibe, 2015 WL 542735(9th Cir. Feb. 11, 2015), decision available here.

Players: Decision by visiting Sixth Senior Circuit Judge Gilman, joined by Judges Graber and Callahan.

Facts: Dibe, and co-participants in Nigeria, ran a wire fraud scheme by contacting U.S. victims and telling them they had won a lottery or an inheritance. Id. Dibe represented

himself as diplomat “John Brown,” and solicited money from the victims to expedite the lottery winnings or inheritance proceeds. Id. Surprisingly, there was no actual lottery or inheritance; Dibe and his colleagues kept over a million dollars in proceeds for themselves. Id. Dibe was indicted, and extended negotiations produced a plea agreement with a range below that ultimately adopted by the district court. Id. Time to accept the deal was short -- Dibe later asserted that counsel did not explain the “tremendous benefits of the plea agreement.” Dibe rejected the deal. Id. Dibe later entered an open plea to wire fraud, and got a 120-month sentence (below the guideline range). Id. at *1. New counsel was appointed after the plea and before sentencing. New counsel argued I.A.C. at sentencing and urged a downward variance. Id. at *2. The district court rejected that argument, adopted (higher) guideline calculations, but still varied downwards on other bases. Id.

Issue(s): “Dibe now appeals on the ground that his sentence would have been even lower if the district court had considered Dibe’s ineffective-assistance-of-counsel claim as a mitigating factor under 18 USC § 3553(a).” Id. at *1. “Dibe seeks a limited remand that ‘affirms the district court’s authority to exercise its discretion and consider appellant’s ineffective assistance of counsel argument in full.’ He claims that the district court erred in (1) its belief that it lacked the authority to consider ineffective-assistance-of counsel claims at sentencing and (2) its failure to consider such a claim as part of the complete history and characteristics of the defendant under 18 U.S.C. § 3553(a)(1) and the mandate to promote respect for the law under § 3553(a)(2)(A).” Id. at *4.

Held: “We conclude . . . that neither claim has merit.” Id. “We . . . conclude that the district court’s failure to consider ineffective assistance of counsel as a sentencing factor was not a procedural error, significant or otherwise.” Id. at *6. “[A] downward departure or variance at sentencing is not the appropriately tailored remedy for ineffective assistance of counsel.” Id.

Of Note: Does Judge Gilman’s name seem familiar? Remember the remarkable Maloney en banc case, where the (then) CJ Kozinski suggested an AUSA take the video of the argument back to the US Attorney and discuss the proper conduct of federal prosecutors? See en banc blog here. 

  The spark that fueled that en banc call was a terrific dissent in the original panel case – a dissent penned by visiting Judge Gilman. See blog on original three-judge panel decision here.  

How to Use: “A more appropriate remedy for the ineffective assistance of counsel would be to allow Dibe to withdraw his guilty plea, or to require the government to re-extend its proposed plea agreement.” Id. at *7. While Judge Gilman closes one door on IAC as a Section 3553(a) variance, he leaves another wide open for these other options.

   Take particular note of the idea of forcing the government to re-extend its deal. Judge Gilman cites Johnson v. Uribe, 700 F.3d 413, 426 (9th Cir. 2012) for that proposition, and invites Dibe to bring that claim on a Section 2255 habeas. Id. at *6. Remember these alternatives when inheriting a mess of a case.  

                                               

For Further Reading: In a remarkable victory, Penn. Governor Tom Wolf last week declared a moratorium on the death penalty. See article here. Nearly 200 inmates will receive temporary reprieves until a report on capital punishment is complete. Id. Governor Wolf's reservations over a “flawed system” required a “step back to examine the effectiveness of a system fraught with racial disparity, constant reversals, and the infinite warehousing of prisoners . . . “ Id. 

  While far from a permanent win, this is an important step in the right direction (and a fine example for California's Governor Brown, as he mulls his own legacy).

Image of “Free Money” mousetrap from http://safe4seniors.com/nigerian.htm

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Don't Do the Crime, Still Do the Time -- Christensen and non-criminal conduct for upward variance

   Have you ever lost money when you decided to “buy, buy, buy” a legitimate investment, only to watch it tank soon after? 

  Take heart -- in the Ninth, your broker can now do time. “In affirming the sentence in the present case, the majority obfuscates the fact that is apparent from any fair reading of the record: the district court based its above-guidelines sentence on investor losses not caused by Christensen’s criminal conduct.” United States v. Christensen, 2013 WL 5583827, *10 (9th Cir. Oct. 11, 2013) (Tashima, J., dissenting) (emphasis added), decision available here.

Players: Decision by visiting, Senior, D.J. Safford (N.D. Fla.), joined by Judge Bybee. Vigorous and compelling dissent by Judge Tashima.

Facts: Christensen defrauded folks in real estate investments. Id. at *1. Some investors were older, some were friends of the defendant, several victims had reported negative life events because of the losses – such as divorce. Id. at *2-*3. Christensen used above half of the fraudulent proceeds for personal expenses. Id. at *2. Many of the investors who lost money, however, and much of the money lost, was due to bad investments or bad luck: the funds weren’t fraudulently diverted. Id. at *6. The parties and Probation all agreed on the criminal loss amount. Id. at *1. Christensen pleaded pursuant to an Information, to a deal that jointly recommended a correct guideline sentence of 33 months. Id. at *1. 

  The district court busted the deal, and varied upward nearly double from the joint guideline recommendation to sixty months in custody. Id. at *1. Much of the rationale for that upward variance was victim complaints on the impact on the losses on their lives – although much of those losses were simply investments gone bad, and not criminal diversion of funds. Id. at *3.

Issue(s): Were the “’life-destroying impacts’ [of the victims’ losses] proper for the district court to consider even if not tied to the loss Christensen caused by misappropriating investor funds[?]” Id. at *8 (emphasis added). [Or, as put by dissenting Judge Tashima, can a district court impose “an upward variance based on non-criminal conduct[?]” Id. at *14 (Tashima, J. dissenting).

Held: “These ‘life-destroying impacts,’ supported by victim statements, provide greater insight into Christensen’s ‘background, character, and conduct’ that the district court was entitled to rely on in determining that for a specified loss resulting from criminal conduct, the Guidelines did not adequately account for the seriousness of Christensen’s offense, provide adequate deterrence, or sufficiently protect the public and innocent investors from the infliction of further harm at the hands of Christensen.” Id. at *7.

Of Note: This is an enormously troubling decision. Either the sentencing court simply made a mistake in attributing all of the victims’ woes to fraudulent losses, or Christensen is now serving twice as much time in federal prison because his investors lost money in legal, legitimate investments. 

  Judge Tashima calls it like he sees it – he complains “the majority paints a grossly distorted picture of the district court’s decisionmaking process.” Id. at *15 (Tashima, J., dissenting). Judge Tashima sounds the alarm at the new Ninth law – that an upward variance can be imposed for non-criminal conduct! Id. at *14. He rejects as “patently absurd” the argument that the language of Section 3661 permits non-criminal conduct to be used for an upward variance – if that was the case, a defendant could get a higher sentence for his “eating or dressing habits, the tradition or school of yoga he favors, or the regularity with which he recycles.” Id. at *15.  

  It is a pointed, thoughtful, and convincing dissent that should trigger en banc interest.

How to Use: Even the government in Christensen “expressly disclaimed reliance on any notion that the district court could permissibly base its upward variance on non-criminal conduct.” Id. at *13 (Tashima, J., dissenting). Yet the majority digs in, expressly endorsing non-criminal conduct as a fair game for an upward departure. Id. at *7 & n.2. Object and object again if non-criminal conduct appears in the rationale for an upward variance – the last chapter on this peculiar sentencing twist has not yet been written.  

                                               

For Further Reading: The Continuing Resolution that passed last week included a $26 million anomaly for Defender Services. That bump helps pay for deferred CJA vouchers, and ensures new vouchers submitted during the CR period can be paid. See Fact Sheet here. 

   We need an additional anomaly of over $50 million this winter to restore the Defender Services account to some semblance of normalcy.

Image of investment advisor Jim Cramer from http://www.v3im.com/2012/03/linkedins-growth-fuels-a-buy-from-goldman/#axzz2iD9jFJsF

Image of prisoner doing yoga from http://images.elephantjournal.com/wp-content/uploads/2012/02/MG_8943.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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